Ballots postmarked on or before June 2 will be counted

Amy Beth Hanson, Associated Press

Updated
6:16 pm EDT, Saturday, May 23, 2020

With the state's primary election just over a week away, a Montana judge has temporarily suspended a state law that says absentee ballots must be received in a county election office by 8 p.m. on election day in order to be counted.

“All absentee ballots postmarked on or before election day shall be counted, if otherwise valid,” District Judge Donald Harris wrote Friday. The ballots must be received by the Monday after election day, which is the deadline for receipt of federal write-in ballots for military and overseas voters.

Montana’s June 2 primary is being held by mail because of the coronavirus.

The disparity and inconsistency in how long it takes the U.S. Postal Service to deliver a mailed ballot is a significant burden to absentee voters, Harris said. Delivery times around the state can vary by as much as two weeks, and people who mail their ballot before this year's June 2 primary have no guarantee it will be delivered in time to be counted, he said.

Harris’ ruling came in a challenge filed by former state Sen. Robyn Driscoll of Billings, the Montana Democratic Party and the Democratic Senatorial Campaign Committee, the law firm Perkins Coie LLP said.

Harris also granted a preliminary injunction against enforcement of a voter-approved referendum called the Ballot Interference Protection Act, which limits one person to turning in a maximum of six absentee ballots and asks that they fill out a form saying whose ballots they are returning.

District Judge Jessica Fehr on Wednesday had issued a temporary restraining order against enforcement of the same ballot collection law in a challenge filed on behalf of Native American tribes and two get-out-the-vote groups. She had set a hearing for May 29 to consider a preliminary injunction.

The Democratic groups challenged both the absentee ballot deadline and the Ballot Interference Protection Act. Harris found the laws would significantly suppress voter turnout by disproportionately burdening voters who are Native American, elderly, disabled, poor, parents working low-wage jobs, college students, first-time voters and those who have historically relied on ballot collection services.

The judge also noted the ballot collection and receipt deadline “will only exacerbate voter suppression because of the COVID-19 pandemic” because the collection law eliminates the use of secure ballot drop boxes and the receipt deadline could lead later voters to turn in ballots in person, possibly causing lines that would violate the social distancing recommendations meant to prevent the spread of the coronavirus.

The state argued the laws are needed to prevent voter fraud and ensure quick and accurate results.

However, Harris said, the state presented no evidence of any absentee ballot collection fraud in Montana and noted that even an election clerk characterized it as the “Voter Suppression Act of 2018.”

Montana election clerks count federal write-in ballots for military and overseas votes until the Monday after election day and can count absentee ballots postmarked by June 2, as long as they are received by June 8, and still "accurately and timely certify election results without disenfranchising the thousands of eligible voters whose ballots are now ignored under the receipt deadline,” Harris wrote.